Defendant school deemed to have "constructive notice of a condition and a reasonable time to correct or warn about its existence" that caused an injury to a teacher

Dan v City of New York

2024 NY Slip Op 02659

Decided on May 14, 2024

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: May 14, 2024
Before: Oing, J.P., González, Kennedy, Higgitt, O'Neill Levy, JJ.

Index No. 21313/16 Appeal No. 2265 Case No. 2023-03010

[*1]Janet Dan, Appellant,

v

City of New York, Defendant, New York City Department of Education et al., Defendants-Respondents.

Alpert, Slobin & Rubenstein, LLP, Garden City, (Lisa M. Comeau of counsel), for appellant.

Sylvia O. Hinds-Radix, Corporation Counsel, New York (Karin Wolfe of counsel), for respondents.

Order, Supreme Court, Bronx County (Mitchell J. Danziger, J.), entered June 14, 2023, which, insofar as appealed from as limited by the briefs, granted the motion of defendants New York City Department of Education and New York City Board of Education (defendants) for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, and the motion denied.

On October 26, 2015, plaintiff, a special education teacher and dean of a Bronx middle school, was helping students enter the school's main entrance shortly after 8:00 a.m. Plaintiff alleges that as she pulled open the leftmost of a pair of "very heavy" metal fire doors, the door "swung out" with great force, smashing her left hand against the tile wall.

The door lacked a doorstop to prevent it from opening completely and striking the wall. Plaintiff believed that the door had an "apparatus" which ordinarily would have prevented the door from quickly opening, but the apparatus was not functioning properly that day. Although she had previously heard the door "crack" as it opened fully against the wall, plaintiff had never noticed any problems with the door, complained about it, or heard of any incidents involving the door.

Defendants met their initial burden to establish that they neither created nor had actual notice of the alleged defect by submitting the testimony of their custodian engineer that there were no prior repairs, complaints, or prior accidents involving the door that allegedly caused plaintiff's accident (see Davila v City of New York, 95 AD3d 560, 561 [1st Dept 2012]). Defendants nonetheless failed to meet their burden of showing that they lacked "constructive notice of the condition and a reasonable time to correct or warn about its existence" (Parietti v Wal-Mart Stores, Inc., 29 NY3d 1136, 1137 [2017]).

On the issue of constructive notice, defendants relied on the testimony of the school's custodian engineer, who stated that she "usually" conducted daily inspections of the building's doors, during which she tested the doors to ensure that they were "functioning properly," "operate[d] safely," and did not "open or close too quickly." Viewed in the light most favorable to plaintiff as the nonmovant (see Vega v Restani Constr. Corp., 18 NY3d 499, 503 [2012]), the custodian engineer's generalized testimony that she would regularly test the door and determine that it was functioning safely and properly, by itself and without any expert analysis, failed to establish, prima facie, defendant's entitlement to judgment as a matter of law (see Lugo v Belmont Blvd. Hous. Dev. Fund Co., 157 AD3d 559, 560 [1st Dept 2018] [denying the defendant's motion for summary judgment where the defendant "failed to offer expert analysis to show that the condition of the door was not dangerous or defective, and instead relied on the testimony of its employees, who merely observed the door and found that it functioned properly"]).

The custodian engineer initially testified [*2]without specific recall of the date in question. She admitted, however, that her daily logs did not refer to any door inspections. The custodian engineer thus did not establish when the door was last inspected before the accident (see Attia v Slazer Enters., LLC, 215 AD3d 413, 414 [1st Dept 2023]). Moreover, defendants' custodian engineer conceded that the accident would not have occurred if a doorstop had been installed near the subject door and admitted that that the doorway's design placed the door dangerously close to the wall. Coupled with plaintiff's testimony that all the other doors in the building had doorstops, an issue of fact exists as to whether defendants should have noticed the "visible and apparent" condition that the subject door was missing a doorstop, posing a foreseeable risk that the door could slam a person's hand into the wall (Hutchinson v Sheridan Hill House Corp., 26 NY3d 66, 83 [2015] [internal quotation marks omitted]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: May 14, 2024

The concept of the separation of powers indicates no single branch of government may assume the power of another branch of government

Cuomo v New York State Commn. on Ethics & Lobbying in Govt.

2024 NY Slip Op 02568

Decided on May 9, 2024

Appellate Division, Third Department

Powers, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered:May 9, 2024

CV-23-1778

[*1]Andrew M. Cuomo, Respondent,

v

New York State Commission on Ethics and Lobbying in Government, Appellant.

Calendar Date:February 16, 2024
Before: Egan Jr., J.P., Clark, Reynolds Fitzgerald, McShan and Powers, JJ.

Letitia James, Attorney General, Albany (Dustin J. Brockner of counsel), for appellant.

Holwell Shuster & Goldberg LLP, New York City (Gregory J. Dubinsky of counsel), for respondent.

Richard J. Davis, New York City, for New York City Bar Association and others, amici curiae.

Powers, J.

Appeal from an order of the Supreme Court (Thomas Marcelle, J.), entered September 11, 2023, in Albany County, which, among other things, granted plaintiff's motion declaring Executive Law § 94 (10) and (14) unconstitutional.

In 2020, while serving as Governor, plaintiff sought and was granted approval from the Joint Commission on Public Ethics (hereinafter JCOPE) to publish a book related to the COVID-19 pandemic, which plaintiff later published under the title "American Crisis: Leadership Lessons from the COVID-19 Pandemic." Despite this approval, JCOPE subsequently commenced an investigation into plaintiff's publication of this book and, as a result, plaintiff was charged with ethics violations. However, in 2022 the Legislature enacted a new version of Executive Law § 94 in response to the alleged failings of JCOPE in general. This amounted to a sweeping overhaul to the policing of ethics violations by government officials and created defendant as a replacement for JCOPE. Defendant was established within the Department of State and tasked with "administering, enforcing, and interpreting New York state's ethics and lobbying laws" (Executive Law § 94 [1] [a]), including Public Officers Law §§ 73, 73-a, 74; Legislative Law art 1-A; and Civil Service Law § 107. Following its creation, defendant elected to proceed on the charges against plaintiff that had previously been brought by JCOPE.

Prior to any hearings related to the charges against him, plaintiff commenced the instant action for declaratory judgment seeking to find Executive Law § 94 unconstitutional and moved to enjoin defendant from any further action on the pending charges against him. Defendant cross-moved for summary judgment seeking declaratory judgment in its favor on the constitutionality of Executive Law § 94. Following oral argument, Supreme Court granted plaintiff the relief sought, finding that Executive Law § 94 (10) and (14), and all powers ancillary thereto, were unconstitutional divestitures of the governor's authority to enforce the laws. Accordingly, the court enjoined defendant from acting in any way inconsistent with this finding. Defendant appeals.

We affirm. "Legislative enactments enjoy a strong presumption of constitutionality and parties challenging a duly enacted statute face the initial burden of demonstrating the statute's invalidity beyond a reasonable doubt" (Delgado v State of New York, 194 AD3d 98, 103 [3d Dept 2021] [internal quotation marks and citations omitted], affd 39 NY3d 242 [2022]; see Center for Jud. Accountability, Inc. v Cuomo, 167 AD3d 1406, 1409 [3d Dept 2018], appeal dismissed 33 NY3d 993 [2019], lv dismissed & denied 34 NY3d 961 [2019]). Legislative power in New York is vested in the Senate and Assembly (see NY Const, art III, § 1), whereas executive power is vested in the governor (see NY Const, art IV, § 1). Among other powers, the governor "shall take care that the laws are faithfully executed" (NY Const, art IV, § 3), which "include[s] [*2]the power to enforce and implement legislative enactments" (Under 21, Catholic Home Bur. for Dependent Children v City of New York, 65 NY2d 344, 356 [1985]). Thus, separation of powers is "implied by the separate grants of power to each of the coordinate branches of government" (Bourquin v Cuomo, 85 NY2d 781, 784 [1995] [internal quotation marks and citation omitted]).

"The concept of the separation of powers is the bedrock of the system of government adopted by this State in establishing three coordinate and coequal branches of government, each charged with performing particular functions. The principle requires that the Legislature make the critical policy decisions, while the executive branch's responsibility is to implement those policies" (Matter of LeadingAge N.Y., Inc. v Shah, 32 NY3d 249, 259 [2018] [internal quotation marks and citations omitted]; see Garcia v New York City Dept. of Health & Mental Hygiene, 31 NY3d 601, 608 [2018]). While "some overlap between the three separate branches does not violate the constitutional principle of separation of powers[,] . . . when [a branch] acts inconsistently with [the powers of another], or usurps its prerogatives, . . . the doctrine of separation is violated" (Clark v Cuomo, 66 NY2d 185, 189 [1985]).

Defendant consists of 11 members who are nominated, subject to certain eligibility restrictions, by various members of the executive and legislative branches (see Executive Law § 94 [3] [a], [e]). Five members are nominated by the executive branch: the governor nominates three members; the attorney general nominates one member; and the comptroller nominates one member (see Executive Law § 94 [3] [a]). Whereas six members are nominated by members of the legislative branch: the temporary president of the Senate nominates two members; the speaker of the Assembly nominates two members; the minority leader of the Senate nominates one member; and the minority leader of the Assembly nominates one member (see Executive Law § 94 [3] [a]). A majority of members constitutes a quorum (see Executive Law § 94 [4] [h]). Once appointed, a member "may be removed by majority vote of [defendant] for substantial neglect of duty, misconduct in office, violation of the confidentiality restrictions set forth in [Executive Law § 94], inability to discharge the powers or duties of office or violation[s] of [Executive Law § 94]" (Executive Law § 94 [4] [c]).

Prior to appointment, all nominations are reviewed by the independent review committee (hereinafter IRC), which consists of the deans of New York's accredited law schools, or an associate dean if designated by the dean (see Executive Law § 94 [2] [c]). The IRC is specifically "tasked with reviewing, approving, or denying the members of [defendant] as nominated" to determine whether the nominee "meet[s] the qualifications necessary . . . based on their background and expertise" (Executive Law § 94 [2] [c]; [3] [d]).^[FN1] The IRC must conduct this review "and approve or deny [*3]each candidate" within 30 days (Executive Law § 94 [3] [b]). Meetings of the IRC are not open to the public and members are not considered public officers for purposes of the Public Officers Law (see Executive Law § 94 [3] [k]-[l]). A member of the IRC may only be removed by a majority vote of the IRC under the same limited circumstances as a member of defendant (see Executive Law § 94 [3] [i]).

As is relevant here, defendant is empowered to receive and review complaints regarding violations of Public Officers Law §§ 73, 73-a and 74; Legislative Law article 1-A and § 5-b; as well as Civil Service Law § 107 (see Executive Law § 94 [10] [a]). Upon receipt of a complaint, defendant's staff reviews the complaint to determine whether to commence an investigation. If an investigation is commenced, notification is provided to the subject of the investigation and, following the investigation, defendant's staff prepares a report setting forth the allegations, evidence gathered, relevant law and a recommendation (see Executive Law § 94 [10] [f]). Defendant reviews this report and determines, by a majority vote, whether to "return the matter to the staff for further investigation or accept or reject the staff recommendation" (Executive Law § 94 [10] [f]).

If defendant determines that there is credible evidence of a violation of relevant law, the subject of the investigation must be provided a due process hearing before an independent arbitrator (see Executive Law § 94 [10] [h]-[i]). Following the hearing, the arbitrator makes a nonbinding recommendation to defendant as to the appropriate penalty or whether any further action should be taken, which recommendation defendant may reverse, remand or dismiss (see 19 NYCRR 941.13 [a], [c], [d]). Upon finding that the subject of the investigation has committed a violation of applicable law, defendant may impose penalties or fines (see Executive Law § 94 [10] [n]), as well as refer the matter to the individual's employer for disciplinary action (see Executive Law § 94 [10] [p] [ii]) or recommend the impeachment of statewide elected officials (see Executive Law § 94 [10] [p] [ii]). However, defendant lacks jurisdiction to impose penalties or discipline on legislative officials and staff and may only prepare a written report and provide same to the Legislative Ethics Commission, along with a copy of the file and hearing record (see Executive Law § 94 [10] [p] [i]).

We find that by enacting the foregoing scheme for the enforcement of the applicable ethics laws, the Legislature, though well intentioned in its actions, violated the bedrock principles of separation of powers. Despite defendant's assertion to the contrary, this Court may not utilize the Legislature's motive or the beneficial purposes of this legislation to overlook this violation. Even the most advantageous legislation violates the dictates of separation of powers if it results in one branch of government encroaching upon the powers of another for the purpose [*4]of expanding its own powers (see e.g. INS v Chadha,462 US 919, 951 [1983]; Under 21, Catholic Home Bur. for Dependent Children v City of New York, 65 NY2d at 359; Rapp v Carey, 44 NY2d 157, 167 [1978]).

Pursuant to the Governor's authority to execute the laws, she is afforded wide discretion in determining the proper methods of enforcement (see Rapp v Carey, 44 NY2d at 163; Matter of Broidrick v Lindsay, 39 NY2d 641, 646 [1976]). However, Executive Law § 94 revokes the Governor's enforcement power with respect to the ethics laws, thereby depriving her of all discretion in determining the methods of enforcement of these laws. Instead, it places this power into the hands of defendant, an entity over which she maintains extremely limited control and oversight, as she appoints a minority of members and has no ability to remove members. Moreover, appointments must be approved by the IRC, an external nongovernmental entity made up of people who are in that position solely by virtue of their employment and do not answer to the populace. As such, Executive Law § 94 creates an agency with executive power, in that it has the authority to investigate and impose penalties for the violation of the ethics laws, while being entirely outside the control of the executive branch. Thus, it usurps the Governor's power to ensure the faithful execution of the applicable ethics laws (see Kuttner v Cuomo, 147 AD2d 215, 220 [3d Dept 1989], affd 75 NY2d 596 [1990]; cf. Under 21, Catholic Home Bur. for Dependent Children v City of New York, 65 NY2d at 359; compare Clark v Cuomo, 66 NY2d at 190).

As defendant notes, "[t]he branches of government cannot always be neatly divided" (Matter of Dry Harbor Nursing Home v Zucker, 175 AD3d 770, 773 [3d Dept 2019] [internal quotation marks and citations omitted], lv dismissed & denied 35 NY3d 984 [2020]). However, this scheme does not present a slight overlap between branches not violative of separation of powers (compare Bourquin v Cuomo, 85 NY2d at 787). In any event, "[t]he erosion need not be great" as "[n]o single branch of government may assume [the] power [of another]" (Rapp v Carey, 44 NY2d at 167). And thus, while the Legislature may delegate many of those powers that it "may rightfully exercise itself" (Delgado v State of New York, 39 NY3d 242, 251 [2022] [internal quotation marks and citation omitted]), it may not usurp the power of the executive by placing upon itself that power conferred upon the executive to faithfully execute the laws.^[FN2] The analogies defendant attempts to draw to other committees and commissions are unavailing.

Defendant's remaining contentions have been reviewed and found to be lacking in merit. Accordingly, Supreme Court properly denied defendant's motion for summary judgment, granted declaratory judgment in plaintiff's favor declaring unconstitutional Executive Law § 94 (10), (14) and all ancillary provisions and enjoined any action inconsistent with that finding.

Egan Jr., J.P., Clark, Reynolds [*5]Fitzgerald and McShan, JJ., concur.

ORDERED that the order is affirmed, with costs.

Footnotes

Footnote 1: While the qualifications of members of defendant are not set forth by statute, the IRC is required to "publish on its website a procedure by which it will review the qualifications of the nominated candidate and approve or deny each candidate" (Executive Law § 94 [3] [c]), which it has done (see Independent Review Committee for Nominations to the Commission on Ethics and Lobbying in Government, available at https://www.ny.gov/independent-review-committee-nominations-commission-ethics-and-lobbying-government [last accessed Apr. 9, 2024]).

Footnote 2: Supreme Court did not improperly rely upon federal precedent. Rather, the court permissibly used this nonbinding precedent to guide its analysis (see generally Matter of Maron v Silver, 14 NY3d 230, 260-261 [2010]) and did not overlook that "the classic separation of powers between the executive and legislative branches is modified to some degree by our [state] Constitution" (Pataki v New York State Assembly, 4 NY3d 75, 83 [2004] [internal quotation marks omitted]).

Petitioners failed to reject Respondent's answer and deem it a nullity due to its lack of a verification resulting in Supreme Court abusing its discretion by sua sponte striking Respondent's answer

 

Matter of Davis v Schley

2024 NY Slip Op 02614

Decided on May 10, 2024

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: May 10, 2024
Before: Moulton, J.P., Scarpulla, Shulman, Higgitt, O'Neill-Levy, JJ.

Index No. 153380/24 Appeal No. 2415 Case No. 2024-02974

[*1]In the Matter of Londel Davis, Jr., et al., Respondents,

v

Craig Schley, Appellant, The Board of Elections in the City of New York, Respondent.

Abrams Fensterman, LLP, White Plains (Lisa C. Florio of counsel), for appellant.

Paul D. Newell, New York, for respondents.

Order and judgment (one paper), Supreme Court, New York County (Richard G. Latin, J.), entered April 29, 2024, which struck the unverified answer of appellant Craig Schley and granted the petition to invalidate his designating petition, unanimously reversed, on the law and the facts, without costs, and the matter remanded for further proceedings consistent with this opinion.

As a preliminary matter, we reach the merits of the issues despite the petition being granted upon respondent's "default." The issue raised on appeal is whether Supreme Court properly struck respondent's unverified answer (see Matter of Atwood v Pridgen, 142 AD3d 1278, 1279 [4th Dept 2016], lv denied 28 NY3d 945 [2016]).

Petitioners failed to reject respondent's answer and deem it a nullity based upon the lack of a verification (see CPLR 3022). As a result, Supreme Court abused its discretion in sua sponte striking respondent's answer and granting the petition on default on this basis. Under CPLR 3026, "[p]leadings shall be liberally construed" and "[d]efects shall be ignored if a substantial right of a party is not prejudiced" (Matter of Augostini v Bernstein, 172 AD3d 1946, 1947 [4th Dept 2019]).

Accordingly, the matter is remanded for further proceedings, including a determination of whether respondent's answer was properly served.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: May 10, 2024

An applicant for accident disability retirement benefits has the burden of establishing that a disability is causally connected to a performance of duty accident

 

Matter of Rosa v New York City Employees' Retirement Sys.

2024 NY Slip Op 02538

Decided on May 8, 2024

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on May 8, 2024 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
MARK C. DILLON, J.P.
CHERYL E. CHAMBERS
LARA J. GENOVESI
LOURDES M. VENTURA, JJ.
2021-06071
(Index No. 521512/20)

[*1]In the Matter of Emilena Rosa, appellant,

v

New York City Employees' Retirement System, respondent.

Goldberg & McEnaney, LLC, Port Washington, NY (Timothy McEnaney of counsel), for appellant.

Sylvia O. Hinds-Radix, Corporation Counsel, New York, NY (Susan Paulson and Jeremy Pepper of counsel), for respondent.

DECISION & ORDER

In a proceeding pursuant to CPLR article 78 to review determinations of the Board of Trustees of the New York City Employees' Retirement System dated April 12, 2018, and March 12, 2020, which denied the petitioner's applications for disability retirement benefits pursuant to Retirement and Social Security Law § 507-c, the petitioner appeals from a judgment of the Supreme Court, Kings County (Lillian Wan, J.), dated August 2, 2021. The judgment denied the petition and dismissed the proceeding.

ORDERED that the judgment is affirmed, with costs.

On April 15, 2016, the petitioner, while working as a correction officer with the New York City Department of Correction, allegedly sustained injuries during an altercation with an inmate. On August 28, 2017, the petitioner applied for performance of duty disability retirement benefits pursuant to Retirement and Social Security Law § 507-c, alleging that she sustained disabling injuries to her right shoulder as a result of the April 2016 incident. On April 12, 2018, the Board of Trustees of the New York City Employees' Retirement System (hereinafter the Board of Trustees), which adopted the recommendation of the Medical Board of the New York City Employees' Retirement System (hereinafter the Medical Board) rejecting the petitioner's contention that she was disabled from performing her duties as a result of the alleged right shoulder injuries, denied the petitioner's application for performance of duty disability retirement benefits. Thereafter, on March 28, 2019, the petitioner filed a second application for performance of duty disability retirement benefits, this time asserting that she suffered disabling injuries to both her right shoulder and right knee as a result of the April 2016 incident. In response, the Medical Board again found that the petitioner did not suffer a disability relating to her alleged right shoulder injuries but concluded that she did suffer from a right knee-related disability. Nonetheless, the Medical Board recommended denial of the petitioner's application on the ground that her disabling condition was the result of the natural progression of a degenerative condition and was not causally related to the April 2016 incident. On March 12, 2020, following a hearing, the Board of Trustees adopted the Medical Board's recommendation and denied the petitioner's second application for performance of duty disability retirement benefits.

The petitioner commenced this proceeding pursuant to CPLR article 78 to review the determinations of the Board of Trustees dated April 12, 2018, and March 12, 2020. In a judgment dated August 2, 2021, the Supreme Court denied the petition and dismissed the proceeding, finding that the determinations were supported by credible medical evidence and, thus, were not arbitrary and capricious. The petitioner appeals.

"Retirement and Social Security Law § 507-c allows for enhanced disability retirement benefits for members of the New York City Employees' Retirement System who are employed as correction officers" (Matter of Hernandez v New York City Employees' Retirement Sys., 148 AD3d 706, 707). "[T]he statute provides," among other things, "that a correction officer is entitled to 'a performance of duty disability retirement allowance equal to three-quarters of [his or her] final average salary' if the officer becomes physically incapacitated as a result of an injury that was 'sustained in the performance or discharge of his or her duties by, or as a natural and proximate result of, an act of any inmate'" (id., quoting Retirement and Social Security Law § 507-c[a]). "An applicant for accident disability retirement benefits has the burden of establishing that a disability is causally connected to a performance of duty accident" (Matter of Singleton v New York City Employees' Retirement Sys., 208 AD3d 882, 882). "The Medical Board determines whether a member applying for disability retirement benefits is disabled, and the Board of Trustees is bound by the Medical Board's finding that an applicant is, or is not, disabled for duty" (Matter of Russell v New York City Employees' Retirement Sys., 155 AD3d 1046, 1046). "If the Medical Board concludes that the applicant is disabled, it must then make a recommendation to the Board of Trustees as to whether the disability was a natural and proximate result of an accidental injury received in . . . city-service" (Matter of Borenstein v New York City Employees' Retirement Sys., 88 NY2d 756, 760 [internal quotation marks omitted]). "The resolution of conflicting medical evidence is within the sole province of the Medical Board, and it [is] entitled to credit the diagnosis of its own doctors over that of the petitioner's doctor" (Matter of Bradley v New York City Employees' Retirement Sys., 193 AD3d 847, 849). If the Medical Board concludes that a disability exists, the Board of Trustees "must then make its own evaluation as to the Medical Board's recommendation regarding causation" (Matter of Borenstein v New York City Employees' Retirement Sys., 88 NY2d at 760). However, "[t]he Board of Trustees is entitled to rely on the advisory opinion of the Medical Board regarding causation" (Matter of Giuliano v New York Fire Dept. Pension Fund, 185 AD3d 812, 814; see Matter of Tobin v Steisel, 64 NY2d 254, 259).

In a proceeding pursuant to CPLR article 78 to review a final determination on an application for performance of duty disability benefits, the Medical Board's finding with regard to the presence of a disability "is conclusive if it is supported by some credible evidence and is not arbitrary or capricious" (Matter of Russell v New York City Employees' Retirement Sys., 155 AD3d at 1046 [internal quotation marks omitted]). Similarly, "[o]rdinarily, the decision of the [B]oard of [T]rustees as to the cause of an officer's disability will not be disturbed unless its factual findings are not supported by substantial evidence or its final determination and ruling is arbitrary and capricious" (Matter of Singleton v New York City Employees' Retirement Sys., 208 AD3d at 882-883 [internal quotation marks omitted]). "Substantial evidence in this context means some credible evidence" (Matter of Maxwell v New York City Employees' Retirement Sys., 210 AD3d 1095, 1096 [internal quotation marks omitted]). "Credible evidence is evidence that proceeds from a credible source and reasonably tends to support the proposition for which it is offered, and . . . must be evidentiary in nature and not merely a conclusion of law, nor mere conjecture or unsupported suspicion" (Matter of Giuliano v New York Fire Dept. Pension Fund, 185 AD3d at 814 [internal quotation marks omitted]; see Matter of Singleton v New York City Employees' Retirement Sys., 208 AD3d at 883). Therefore, in an article 78 proceeding, "as long as there was any credible evidence of lack of causation before the Board of Trustees, its determination must stand" (Matter of Giuliano v New York Fire Dept. Pension Fund, 185 AD3d at 814 [internal quotation marks omitted]). "A mere conflict in opinion among physicians is not a ground for disturbing a determination" (Matter of Bradley v New York City Employees' Retirement Sys., 193 AD3d at 848 [internal quotation marks omitted]).

Here, the conclusions of the Medical Board were supported by credible evidence, such as its independent interviews and examinations of the petitioner and its review of medical [*2]records from her treating physicians, including, inter alia, reports relating to multiple MRIs of her right knee (see Matter of Maxwell v New York City Employees' Retirement Sys., 210 AD3d at 1096; cf. Matter of Stack v Board of Trustees of N.Y. City Fire Dept., Art. 1-B Pension Fund, 235 AD2d 483, 483). In addition to its medical finding that the conditions in the petitioner's right knee were degenerative in nature, the Medical Board's causation recommendation was influenced by the petitioner's admission that she returned to full duty for months following the April 2016 incident. The record before the Board of Trustees also revealed that the petitioner did not include a claim relating to her right knee in her initial benefits application and only asserted such a claim after that application was rejected (see Matter of Williams v Ward, 227 AD2d 307, 308). The determinations of the Board of Trustees to adopt the Medical Board's recommendations with regard to causation therefore were neither irrational nor arbitrary and capricious (see Matter of Singleton v New York City Employees' Retirement Sys., 208 AD3d at 883; Matter of Russell v New York City Employees' Retirement Sys., 155 AD3d at 1047).

Contrary to the petitioner's contention, the record does not demonstrate that the Board of Trustees was misled by or materially relied upon a misstatement of fact by Joseph Bottner, a physician, at the hearing on the petitioner's second application for performance of duty disability retirement benefits (see Matter of Singleton v New York City Employees' Retirement Sys., 208 AD3d at 883). Bottner stated that he "would think" that the first MRI of the petitioner's right knee following the April 2016 incident was one conducted in 2018, but the petitioner underwent an MRI of her right knee in September 2016. However, not only did the petitioner's attorney mention the 2016 MRI of the petitioner's right knee during his presentation at the hearing, but the Medical Board's report on the petitioner's second application discussed that MRI. In any event, the petitioner's contention that the Board of Trustees's alleged failure to consider the 2016 MRI of the petitioner's right knee mandates annulment of its determination is without merit (cf. Matter of Gaudioso v Board of Trustees of N.Y. City Fire Dept., Art. 1-B Pension Fund, 40 AD3d 638, 639; Matter of Stack v Board of Trustees of N.Y. City Fire Dept. Art., 1-B Pension Fund, 235 AD2d at 483; Matter of Mescall v Board of Trustees of N.Y. City Fire Dept., Art. 1-B Pension Fund, 204 AD2d 643, 644-645). The petitioner asserts that annulment is warranted because the 2016 MRI of her right knee established incontrovertible evidence of a causally related disability, yet the Medical Board concluded that the findings of that MRI were "consistent with degenerative disease of [the right] knee[,] not with any acute injury," and the Board of Trustees was permitted to rely upon the Medical Board's conclusion (see Matter of Giuliano v New York Fire Dept. Pension Fund, 185 AD3d at 814).

Moreover, contrary to the petitioner's contention, the Medical Board's finding on her first application that she did not suffer a right shoulder-related disability was supported by credible evidence (see Matter of Russell v New York City Employees' Retirement Sys., 155 AD3d at 1046). In any event, in her interview with the Medical Board with respect to her second application, the petitioner conceded that she was not disabled by the condition of her right shoulder.

The petitioner's remaining contentions are without merit.

Accordingly, the Supreme Court properly denied the petition and dismissed the proceeding.

DILLON, J.P., CHAMBERS, GENOVESI and VENTURA, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court

Productivity Enhancement Program (PEP) for 2024, NYSCOPBA (Security Services Unit – SSU) and DC-37 – (Rent Regulation Services Unit – RRSU)

On May 10, 2024, the New York State Department of Civil Service posted the following Attendance and Leave Bulletin announcement on the Internet.

Policy Bulletin 2024-03, Special Enrollment Period: Productivity Enhancement Program (PEP) for 2024:

•  NYSCOPBA (Security Services Unit – SSU) and 
• DC-37 – (Rent Regulation Services Unit – RRSU) Represented Employees Only

The Text of Policy Bulletin 2024-03 is posted on the Internet at:
https://www.cs.ny.gov/attendance_leave/PolBull24-03.cfm

If you wish to print Policy Bulletin 2024-03 the Department offers a version in PDF format at: https://www.cs.ny.gov/attendance_leave/PB2024-03Combined.pdf

To view previous Attendance and Leave bulletins issued by the Department of Civil Service, visit: https://www.cs.ny.gov/attendance_leave/index.cfm